HYPOTHETICAL:
Client wanted to sue for the tort of defamation.
This is a SAMPLE ONLY of what 1st year
law students must write.

MEMORANDUM

To: John Doe, Senior Partner,

From: Alice Marie Beard

Date: 00/00/0000

Re: Burt McDougal: Potential
tort claims against Maxine Schlage

______________________________________________________________

QUESTIONS
PRESENTED:

Under North Carolina law, the
elements for a cause of action under defamation are (1)
defendant made false, defamatory statements about the
plaintiff; (2) those statements were published to a third
person; and (3) the statements caused injury to
plaintiff's reputation. Tyson v. L'Eggs Products, Inc.,
84 N.C.App. 1, 351 S.E.2d 834 (1987).

Question #1: Under N.C. law does
a person commit the tort of defamation against a
businessman when, at her personal internet web site, (1)
she claims the man had sexual relations with her when she
was 16; (2) she claims he had an affair while married;
(3) she claims he made a "pass" at his wife's
sister while married; (4) she claims he is not living up
to his divorce settlement; (5) she claims he has failed
to make child support payments; (5) she calls him a
"jerk"; (6) she says he is a "mentally
unstable monster" and "might resort to
violence"?

Question #2: Under N.C. law, if
there has been defamation, are damages recoverable when a
person's business has lost a major account, and when the
person has suffered emotional stress to the point of
weight loss, daily therapy sessions, and prescription
anti-depressants?

SHORT
ANSWER:

Probably yes. Based on the law
of defamation and libel as interpreted by North Carolina
courts, the case should survive a defense motion for
summary judgment, and damages are recoverable.

FACTS:

Our client, Burt McDougal, says
that his former sister-in-law, Maxine Schlage, has
defamed him on her personal web site. He says that all of
her statements are false, that his business has lost a
major client because of the defamation, and that the
situation has caused him serious distress.

McDougal is divorced from
Schlage's sister, Rita Wilder. McDougal and Wilder have a
12-year-old son, Jeremy. McDougal says that the divorce
was and remains amicable. He is co-owner of a Charlotte,
NC, business that works for high-tech clients and has
lost a major client: All-American On-the-Net (AAON).
Steve Casey, President of AAON, has told Senior Partner
Gunnah that he canceled the account with McDougal's
company because Casey does not want to do business with a
"questionable individual."

Accusations that Schlage has
posted to the internet include the following: (1) that
McDougal had sexual relations with her when she was 16;
(2) that he had an affair while married; (3) that he made
a "pass" at his wife's sister; (4) that he is
not living up to his divorce settlement; (5) that he has
failed to make child support payments, and (6) that he is
a "jerk" and a "mentally unstable
monster" who "might resort to violence."

Most of the names on Schlage's
web site are pseudonyms. After Casey drew McDougal's
attention to the web site (which had been brought to
Casey's attention by an AAON employee), McDougal asked
Schlage to remove specific reference to his son; she
changed the boy's name to a pseudonym. McDougal's name,
however, continued to appear in full. Schlage published
his e-mail address, his home address, and his home
telephone number.

McDougal wrote Schlage asking
that information about him be removed, and he told her
that he feared her words could cost him financially.
Schlage's response was more of the same. She gives no
signal that she will remove what she has written or will
stop writing more.

McDougal denies all accusations
with the exception of the "pass" at his
then-wife's sister. He said the event happened, but that
the sister misinterpreted it. He believes that Schlage
behaves as she does because "she is a little
off." He says that Schlage lives off inherited
wealth.

McDougal said he
has received thousands of angry emails from various
people, almost one hundred angry phone calls, and an
angry message on a brick that was thrown through a window
of his house. He reports that, because of the stress, he
has lost thirty pounds. Previous to this situation, he
had no troubles with depression. Now, he sees a therapist
daily and takes prescription anti-depressants.

DISCUSSION:

The Law:

The U.S. Supreme Court has ruled
that "... so long as they do not impose liability
without fault, the States may define for themselves the
appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a
private individual." Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974). Under N.C. law, in considering
whether an action is defamation, we look to the N.C.
state constitution, to chapter 99 of the N.C. General
Statutes, to Restatement (2d) of Torts because it
is cited as authority in many N.C. appellate cases, and
to the common law.

State
Constitution

Article I, § 14, of the N.C.
state constitution reads, "Freedom of speech and of
the press are two of the great bulwarks of liberty and
therefore shall never be restrained, but every person
shall be held responsible for their abuse."

North Carolina
General Statues (N.C.G.S.)

N.C. Gen. Stat. § 99 (1989)
deals with defamation, but it does not address the issues
that must be considered for McDougal's case.

Restatement
(2d) of Torts (1976)

Restatement (2d) at §
558 lists the elements of a cause of action for
defamation: "(a) a false and defamatory statement
concerning another; (b) an unprivileged publication to a
third party; (c) fault amounting at least to negligence
on the part of the publisher; and (d) either
actionability of the statement irrespective of special
harm or the existence of special harm caused by the
publication." N.C.'s Court of Appeals cited § 558
of Restatement (2d) in Renwick v. News and
Observer Pub. Co., 63 N.C.App. 200, 304 S.E.2d 593
(1983).

Common Law

According to N.C.G.S., "All
such parts of the common law as were heretofore in force
and use within this State, ... not destructive of, or
repugnant to, or inconsistent with ... the form of
government therein established, ... are hereby declared
to be in full force within this State." N.C. Gen.
Stat. § 4-1 (1989). Therefore, N.C. courts rely on
common law in defamation actions.

"In its most general and
comprehensive sense, it may be said that any publication
that is injurious to the reputation of another is a
libel." Flake v. Greensboro News Co., 212
N.C. 780, 195 S.E. 55 (1938). Flake is the most
complete analysis of the law of libel in N.C., and it is
the most oft quoted: "Libels may be divided into
three classes: (1) Publications which are obviously
defamatory and which are termed libels per se; (2)
publications which are susceptible of two reasonable
interpretations, one of which is defamatory and the other
is not; and(3) publications which are not
obviously defamatory, but which become so when considered
in connection with innuendo, colloquium, and explanatory
circumstances. This type of libel is termed libel per
quod."

Flake continues,
"When an unauthorized publication is libelous per
se, malice and damage are presumed from the fact of
publication, and no proof is required as to any resulting
injury.... In an action upon a publication coming within
the second class, that is, a publication which is
susceptible of two interpretations, one of which is
defamatory, it is for the jury to determine under the
circumstances whether the publication is defamatory and
was so understood by those who saw it.... In publications
which are libelous per quod, the innuendo and special
damages must be alleged and proved." Since 1938, Flake
has been cited repeatedly as authority in defamation
cases: Phillips v. Winston-Salem/Forsyth Co. Bd. of
Educ., 117 N.C. App. 274, 450 S.E.2d 753 (1994); Tyson
v. L'Eggs Products, Inc., 83 N.C. App. 1, 351 S.E.2d
834 (1987); Roth v. Greensboro News Co., 217 N.C.
13, 6 S.E.2d 882 (1940).

The standard of fault for
private person libel plaintiffs in North Carolina is
negligence. Walters v. Sanford Herald, Inc., 31
N.C.App. 233, 228 S.E.2d 766 (1976): "[A] plaintiff
in a civil action for libel, if he is a private citizen
and not a public official or a public figure, can recover
only if he alleges and proves fault, or at least
negligence, on the part of the defendant publisher in
publishing false and defamatory statements."

A plaintiff could face these
defenses: (1) the tolling of N.C.'s one-year statute of
limitations on defamation; (2) the claim that defendant's
statements were true; (3) the claim that the statements
were fair reporting and thus a qualified privilege; (4)
the claim that the statements were fair comment and
criticism; (5) the claim that the statements were opinion
and thus protected by the First Amendment of the federal
constitution and by Article I, § 14, of N.C.'s
constitution.

Analysis:

Our client could prove five of
the six elements with ease: Third-party recognition could
be proven because Casey's employee happened upon
Schlage's web site and recognized McDougal, and after his
attention was drawn to it, Casey knew the web site
referred to McDougal. Publication could be proven; the
common understanding of "publication" is that
something has been made known, and Schlage's web site
made things known. Both fault and falsity could be proven
regarding the child support payments by a deposition from
McDougal's former wife and by court records. Financial
damage could be proven by deposing Casey to say that that
he pulled AAON's account because of the gossip caused by
Schlage's online writing. Emotional damage could be
proven by deposing McDougal's therapist, whom McDougal
sees daily.

It is the element of defamation
that would be the most difficult to prove.

Some of what McDougal sees as
defamatory would not meet the legal definition of
defamation:

(1) Schlage claims that McDougal
and she had sexual relations when she was 16. He denies
it. At the age of 16, Schlage had reached the age of
consent in N.C. N.C.Gen. Stat. § 14-27.7A (1989).
Therefore, if the two did have sexual relations, it was
not a crime.

(2) Schlage claims that McDougal
had an affair while a married man. In N.C., adultery is a
Class 2 misdemeanor. N.C.Gen. Stat. § 14-184. The law
stipulates that the admissions or confessions of one
participant shall not be evidence against the other.
Thus, even if Schlage's claim were that McDougal had an
affair with her while married, her word alone could not
be used to prove the act. Additionally, proving that the
accusation of adultery would injure another's reputation
may be difficult. Donovan v. Fiumara, 114 N.C.
App. 524, 442 S.E.2d 572 (1994), dealt with calling
someone "gay" or homosexual. The court noted,
"[A]s North Carolina progresses through the mid
1990s, we are unable to rule the bare allegation that an
individual is 'gay' or 'bisexual' constitutes today an
accusation which, as a matter of law and absent any
'extrinsic, explanatory facts' . . . per se holds that
individual up to 'disgrace, ridicule or contempt.'"

"At common law, ... an
infamous crime is one whose commission brings infamy upon
a convicted person, rendering him unfit and incompetent
to testify as a witness, such crimes being treason,
felony, and crimen falsi." State v. Clemmons,
100 N.C. App. 286, 292, 396 S.E.2d 616, 619 (1990)
(quoting State v. Surles, 230 N.C. 272, 283-84, 52
S.E.2d 880, 888 (1949). As explained in Aycock v.
Padgett, 134 N.C. App. 164, 516 S.E.2d 907 (1999),
"[It] is worth noting that there are many Class I
felonies of which citizens of this state could be accused
that would probably require further explanation before
becoming libelous." In Chapman v. Byrd, 124
N.C. App. 13, 475 S.E.2d 734 (1996), the court dismissed
a defamation claim that alleged that a group of people
had been defamed by the false rumor that they had AIDS.
[However, the court did allow the claims of intentional
and negligent emotional distress to go forward.] In light
of such decisions, proving that the accusation of
adultery would injure another's reputation may be
difficult.

(3) Schlage claims that McDougal
made a "pass" at his wife's sister while
married. He admits he did something that was
misinterpreted as a "pass." There is no law in
N.C. about "making a pass."

(4) She called McDougal a
"jerk" and said that he is a "mentally
unstable monster." Under Keeton v. Hustler
Magazine, Inc., 465 U.S. 770 (1984), the First
Amendment opinion defense protects a defendant who can
claim that the statements were hyperbole, exaggeration,
and statements that no one would believe. Whether a man
is a "jerk" is an opinion. If a person is not
trained in psychiatry, whether he is unstable is an
opinion.

Other accusations by Schlage
would have a better chance of getting to the jury:

(1) Schlage claims that McDougal
is not living up to his divorce settlement and accused
him of not making child support payments. By N.C. Gen.
Stat. § 14-322 (d) (1989), "Any parent who shall
willfully neglect or refuse to provide adequate support
... shall be guilty of a misdemeanor." A first
offense is a Class 2 misdemeanor; a subsequent offense is
a Class 1 misdemeanor. If McDougal is able to prove that
he has made all child support payments, and if Casey
would testify that he ended the association because he
will not have business dealings with people who do not
meet their family obligations, defamation is a
possibility on this issue.

(2) Schlage said McDougal might
resort to violence. "A libel per se is a malicious
publication expressed in writing, printing, ... or other
device, which upon its face and without aid of extrinsic
proof is injurious and defamatory, tending to blacken the
... reputation of one who is alive and expose him to
public hatred, contempt, or ridicule." Flake v.
Greensboro News. Co., 212 N.C. 780, 195 S.E. 55
(1938). Calling someone violent could result in hatred,
and the emails and calls McDougal has received show
public hatred. "Simply couching a statement-- 'Jones
is a liar'--in terms of opinion--'In my opinion Jones is
a liar'--does not dispel the factual implications
contained in the statement." Milkovich v. Lorrain
Journal, 497 U.S. 1 (1990).

Examples of communications that
have been deemed actionable under defamation include
allegations that a church's minister "caused trouble
amounting to a continuous upheaval, and disrupted the
peace and harmony of the church." Kindley v.
Privette, 242 N.C. 140, 84 S.E.2d 660 (1954);
a statement by one butcher about another that the second
had slaughtered a mad dog-bitten cow, Broadway v. Cope,
208 N.C. 85, 179 S.E. 452 (1935); a publication calling a
minister an ignorant and uncharitable man, Pentuff v.
Park, 194 N.C. 146, 138 S.E. 616 (1927); the
allegations that a university employee was "a liar,
deceitful, absolutely useless, and does not have a Ph.D.,
and was a fraud," U v. Duke University, 84
N.C. App. 171, 371 S.E.2d 701 (1988); the charge that a
woman employee used illegal drugs on company premises and
used the company computer to look at pornography, Barker
v. Kimberly-Clark Corp., 136 N.C. App. 455, 524
S.E.2d 821 (2000).

Private v.
Public Defendant:

Whether McDougal is a private or
a public figure would need to be considered. In Gaunt
v. Pittaway, 353 N.C. 371, 547 S.E.2d 810 (2000), the
judge ruled that, "Under North Carolina law, an
individual may become a limited purpose public figure by
his purposeful activity amounting to thrusting of his
personality into the vortex of an important public
controversy." If McDougal loses his status of
"private person," he also loses the protection
of Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974). McDougal would then need to prove actual malice.
McDougal has his own company. If he worked public
relations, publicity, and image building in an effort to
build the business, a court could rule that McDougal is a
public figure.

CONCLUSION

Based on the law of defamation
and libel as interpreted by N.C. courts, the case should
survive a defense motion for summary judgment. The best
summary is found in the instructions to the Flake
jury: "(1) Did the defendants, or any of them, and
if so, which defendant or defendants, wrongfully and
unlawfully publish or caused to be published of and
concerning the plaintiff the matters set forth in
paragraph 8 of plaintiff's complaint, as alleged? (2) If
so, was such publication, in the light of surrounding
facts and circumstances, calculated to bring and did it
bring the plaintiff into public ridicule and contempt, as
alleged? (3)What damages, if any, is the plaintiff
entitled to recover?" With similar instructions,
McDougal would have a good case.